State (Govt. of NCT of Delhi) v. Gurjinder Singh @ Barjinder Singh & Anr.

(vii) Pustule present over left side of nose.

10. It is pertinent to record here that DD No.18-B Ex.PW-25/A was recorded on 22.05.2009 on admission of deceased Harminder Singh to the hospital by Head Constable Muni Ram (PW-12) and recording of the MLC in question. The said information was received by ASI Madan Lal (PW-24) via telephone.

11. The following inferences are clear from the MLC and the FIR, i.e., (1) It does not name the two respondents as the perpetrators who have given injuries. (2) Head Constable Muni Ram had taken the deceased Harminder Singh to the hospital and MLC was recorded on 22.05.2009 but he had not disclosed names of the perpetrators or the fact that he was aware of injury in rectum and the cause for the injury. (3) No investigation or inquiries were made from 22.05.2009 till 29.05.2009. The MLC was subsequently recorded on 30.05.2009 that there was alleged history of assault.

12. In spite of the fact that the MLC does not specifically mention about rectal perforation or allegation that the deceased was subjected to forceful introduction of hard and blunt object into his anus, these findings were recorded in the death summary report Ex.PW-11/A. Police did not ascertain and collect the papers relating to medical treatment and injuries caused to the deceased Harminder Singh from Hindu Rao Hospital.

13. As per the death summary report Ex.PW-11/A, proved by Dr. Naseem Akhtar (PW-11), the deceased had the following injuries:-

(i) There were multiple abrasions present in both upper and lower limbs and shoulders and back of chest and abdomen.

(ii) Laceration with pus discharge present behind both ears.

(iii) Boggy swelling present over occiput.

(iv) Abrasion 2x[2] cm present over lower lip.

(v) Guarding present over all over abdomen, bowel sound sluggish, bluish discolouration present over both iliac fossa, anteriorly and posteriorly and lower back left side posteriorly.

(vi) On per rectal examination, laceration of about 2.5x0.5x0.[5]

14. As noticed above, the MLC Ex.PW-9/A does not mention the injury or perforation of the rectum. Thus, it is clear that an attempt was made to conceal by not pointing out or stating the said injury. We have also noted that the contents of DD entry No.18-B marked Ex.PW-25/A and DD entry No.11-A marked Ex.PW-24/A wherein the said injury is not indicated or mentioned.

15. As per the charge sheet the deceased had suffered the injuries between 13/15.05.2009. Thereafter, as per prosecution version, the deceased under suspension had remained and resided in an injured condition in the police barrack in District Line North from 15.05.2009 till 22.05.2009.

16. We would now refer to the ocular evidence on the question of socalled dying declarations made by the deceased on 22.05.2009 to the police officers, Head Constable Muni Ram (PW-12), ASI Surender Singh (PW-13), Ct. Krishan Kumar (PW-18) and Head Constable Dharam Singh (PW-19). These dying declarations form the core of the prosecution case/charge sheet. As per the said witnesses at different points of time deceased Harminder Singh had informed them that he was beaten by Gurjinder Singh and Birju Dass, chholewala on 13.05.2009 in the police quarters at Model Town. Statement of Head Constable Muni Ram (PW-12) who, as noted above, had taken the deceased to the hospital and got him admitted there on 22.05.2009 was recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) on 26.08.2009, i.e. more than three months after the death of Harminder Singh on 28.05.2009. It is submitted before us that PW- 12 had gone on vacation and therefore his statement could not be recorded by the IO. The contention per se does not merit acceptance and deserves rejection. The submission/contention has not been admitted to and brought on record. There were ways and means by which the investigating officer could have got in touch with Head Constable Muni Ram (PW-12). DD No.18-A Ex.PW- 24/A records that PW-12 had taken the deceased Harminder Singh and admitted him in the hospital. PW-12 in his cross-examination accepted that he had visited the hospital on various occasions to see Harminder Singh between 22.05.2009 to 28.05.2009. However, during this time PW-12 did not indicate or state to the police or authorities as to who had inflicted the injuries on Harminder Singh. PW-12 accepted as correct that he on his own had not given any statement between 22.05.2009 to 25.08.2009 though, police officers from Police Station Mukherjee Nagar met him during this period. The Trial Court has therefore, rightly rejected the so-called version given by PW-12 in his testimony that on 22.05.2009, Harminder Singh had informed him that the respondents on 13.05.2009 had inflicted beatings and inserted Mathani in his anus.

17. We shall refer to the testimony of ASI Surender Singh (PW-13) subsequently but at this stage we would like to deal with the testimony of Constable Krishan Kumar (PW-18), wherein he stated that he was on duty in Hindu Rao Hospital on 22.05.2009 and on that day Harminder Singh was admitted as a patient. PW-18 claims that he had questioned the deceased about the incident and was told that the deceased told him that the respondents had given beatings at the quarter of Gurjinder Singh in New Police Line, Kingsway Camp. He accepts that he had informed Police Station Mukherjee Nagar about admission of Harminder Singh and the information was reduced into DD No.18-B. It is noticeable that MLC Ex.PW-9/A specifically records and states that the patient was unfit for statement at different times on 22.05.2009, the date on which PW-18 claims the deceased had confided and told him that the two respondents were the culprits.

18. It is interesting to note that statement of Constable Krishan Kumar (PW-18) under Section 161 Cr.P.C., as per the police version was recorded on 30.05.2009 and not earlier between 22.05.2009 and 29.05.2009. There is no explanation or reason for the said delay in recording his statement. PW-18 in his cross-examination has stated that he did not narrate or give names of the assailants to ASI Madan Lal. As noticed above, the FIR in question was registered at ten minutes passed mid night on 29.05.2009 and the FIR does not mention the name of the two respondents as the culprits. FIR was registered primarily on the basis of DD entry No.18-B recorded at the instance of Constable Krishan Kumar (PW-18). It does not mention or refer to the so-called dying declaration made by the deceased to Constable Krishan Kumar (PW-18).

19. Head Constable Dharam Singh (PW-19) claims that on 15.05.2009 he had seen Harminder Singh with multiple injuries and on 22.05.2009 his condition became worse. Muni Ram (PW-12) had then taken him to the hospital and on the way Harminder Singh had told them that he was beaten by a belt by the respondents at the New Police Line quarters and they had also inserted a Mathani in his anus. The dispute was regarding money. He accepts that on 28.05.2009, Harminder Singh expired and thereafter, his statement was recorded. In the cross-examination he accepted that he came to know about demise of Harminder Singh on 28.05.2009 but he did not narrate the facts to anybody on 29.05.2009 and for the first time he disclosed the fact on 06.06.2009 to SI Pradeep Kumar. He, however, on seeing his statement recorded under Section 161 Cr.P.C. stated that his statement under Section 161 Cr.P.C. was recorded on 02.06.2009. He submitted that he had not made any complaint from 28.05.2009 to 02.06.2009.

20. For the reasons stated above and while dealing with testimony of Head Constable Muni Ram (PW-12) we reject the contention of the prosecution that the deceased had made statement or given dying declaration to Head Constable Dharam Singh (PW-19).

21. This brings us to the testimony of ASI Surender Singh (PW-13) which has to be read along with testimony of Nasim Khan (PW-8).

22. ASI Surender Singh (PW-13) has stated that deceased Harminder Singh was a Constable under suspension and was living in the barrack at second floor, Police Station Civil Lines. Respondents used to visit him in the barrack. On 13.05.2009, the respondents had taken Harminder Singh with them somewhere. On 15.05.2009 Harminder Singh came back and he was having multiple injuries and his physical condition became worse. He (PW-13) claims that he had asked Harminder Singh as to how he received the injuries and was told that the respondents had given beatings with belt and also inserted Mathani in his anus. PW-13 claims that he had suggested and asked the deceased to make a complaint against the respondents but the deceased was frightened and did not make any complaint as he feared that he would be killed. He accepted as correct that on 28.05.2009 Harminder Singh expired in the hospital. In his cross-examination, ASI Surender Singh (PW-13) has stated that on 13.05.2009 when he had seen the two respondents with the deceased, they were drunk. In the crossexamination by the Additional Public Prosecutor for the State, PW- 13 accepted the suggestion that he had informed the investigating officer that in spite of his warning, the deceased he did not pay any heed and went with the two respondents. He had also accepted as correct that on 15.05.2009, Harminder Singh had told him that the two respondents had taken him to C-22, New Police Line and both of them had given beatings to him and inserted Mathani in his anus. PW-13 in his cross-examination accepted as correct that once or twice he had visited Harminder Singh in the hospital but he did not meet any police officer during these visits. He accepted as correct that he did not make any statement to the police between 15.05.2009 to 01.06.2009 on his own on disclosing the aforesaid facts even after he came to know about death of Harminder Singh on 28.05.2009. He accepted as correct that his statement under Section 161 Cr.P.C. was recorded only on 02.06.2009. Further, the respondents accused were not known to him prior to the incident and he had never met them or known them through any third person. As per the version given by PW-13 he came to know about involvement of the two respondents on 15.05.2009. What has not been explained and shakes the confidence of the Court on the version given by PW-13 is his failure to depose about the facts till 02.06.2009 in spite of the fact that he was a police officer. It is not understandable why he waited for about more than 17 days and even after 28.05.2009, when he came to know that Harminder Singh had expired. PW-13 accepts that he had visited the hospital. He had seen the deceased in the hospital and certainly knew the serious and precarious condition of the deceased. Being an officer of ASI rank, he would have also known and aware that no investigation had been conducted and the real culprits who had caused such injuries had not been enquired or questioned.

23. Nasim Khan (PW-8) on the issue of last seen has contradicted ASI Surender Singh (PW-13). As per PW-13, the deceased and the two respondents had left the police quarters together on 13.05.2009, whereas, Nasim Khan (PW-8), a barber by profession operating in front of Police Station, Civil Lines, claims that he knew the deceased Harminder Singh, who was under suspension, as he used to visit him and take food from a stall in front of the place where he was operating. PW-8 claims that on 13.05.2009 at about 1:00/1:30 p.m., he was going to bring pulses (dal) from a hotel and at that time Harminder Singh was with him. On the way Harminder Singh was called out by someone and he (Hardminder Singh) went towards the said person stating that he would come back between 15-20 minutes. He did not return. After about three days Harminder Singh came back but had suffered multiple injuries. Thereafter he was admitted to Hindu Rao Hospital. He visited Harminder Singh in the hospital and was informed that altercation had taken place with someone and he had sustained injuries. After about seven days Harminder Singh died. Nasim Khan (PW-8) deposed that Harminder Singh did not disclose the names of the assailants to him. On cross-examination by Additional Public Prosecutor, he accepted as correct that on 13.05.2009 the two respondents had called Harminder Singh while he was accompanying PW-8 to the hotel. Harminder also told him (PW-8) that the two respondents took him to government police quarters and had given beatings to him there. He accepted as correct that on 15.05.2009 when Harminder Singh came back, he was not in a position to move properly and was going to toilet again and again. He however, denied as incorrect that he did not make any statement and that he was scared of the two respondents.

24. Statement of PW-8 under Section 161 Cr.P.C., as stated by the counsel for the State was recorded on 04.06.2009. Further, in his cross-examination Nasim Khan (PW-8) has stated that he had visited and seen Harminder Singh in the hospital on various dates. His family members were not present, but police officers were present. He accepted as correct that he did not inform the police officials that Birju Dass had inflicted injuries. He also accepted as correct that he came to know about death of Harminder Singh on the day he died but he did not go to the Police Station on that day or for the next 2/3 days and make any complaint against the respondents. He claims that he came to know about registration of the case only when his statement was recorded.

25. For the reasons stated earlier, we are not inclined to accept the testimony of Nasim Khan (PW-8) but as noticed above, the testimony of PW[8] on the question of last seen varies with the testimony of ASI Surender Singh (PW-13).

26. The last witness relied upon by the prosecution is Ashok Kumar (PW-7) who claims that he used to have a juice rehri near Civil Line Police Station. Ashok Kumar (PW-7) has stated that on 15.05.2009 when he went to the barrack, he found Harminder Singh lying on the cot with multiple injuries. Harminder Singh had stated that one person who was resident of a neighbouring village and belonged to the same department had caused the injuries. His statement was recorded by the police on 02.06.2009. He was cross-examined by the learned Additional Public Prosecutor but denied the suggestion that the deceased had told him that the two respondents had given beatings to him and inserted Mathani in his anus. In his cross-examination, he accepted that he had not met with any police officer in connection with the investigation of the case till 02.06.2009.

27. Again for the reasons stated above, while dealing with the testimony of other witnesses, we hold that Ashok Kumar (PW-7) is not a reliable witness and his testimony on the question of dying declaration cannot be accepted and is not credible. In any case, he has not stated that the deceased had named the two respondents as the perpetrators.

28. Learned counsel for the petitioner (State) has drawn our attention to paragraph 59 of the impugned judgment which reads as under:-

29. It is submitted that in the present case there may have been lapses but there were no mala fides or dishonourable intention. The three investigating officers mentioned in paragraph 59 were diligent but were helpless as none of the witnesses had came forward or had disclosed facts. In alternative, it is submitted that may be the first investigating officer ASI Madan Lal (PW-24) was at fault for inaction between 22.05.2009 to 29.05.2009, but the subsequent investigating officers had conducted thorough investigation and had acted with promptitude. Giving benefit of doubt, the respondents have been acquitted by the Trial Court. It is also submitted that before passing strictures, the concerned officers should have been heard and given an opportunity.

30. We have considered the said contention and are inclined to partly modify the directions given in paragraph 59 of the impugned judgment. The direction for holding of disciplinary inquiry is set aside. As elucidated above and in the impugned judgment, question of proper investigation, delay etc. require indepth and detailed scrutiny. The strictures regarding the investigation are justified and proper. It will be appropriate to refer to Rule 13 of the Delhi Police (Punishment and Appeal) Rules, 1980, which reads:-

31. As per the said Rule, when strictures are passed by a Sessions Court or Metropolitan Magistrate’s Court but no specific recommendation is made, the Deputy Commissioner of Police is required to decide whether an investigation into the matter is necessary. If he decides that investigation shall be made, the procedure laid down in Rule 16 follows. Under sub-rule (2) when strictures on the conduct of a police officer are made by the High Court and are communicated to Delhi Administration, the appointing authority is required to proceed to take action in accordance with the instructions of the Delhi Administration. Subrule (3) provides that where serious charges arise from strictures made by criminal courts, the concerned Deputy Commissioner of Police shall initiate necessary disciplinary action against the police officer against whom strictures have been made and in case such proceedings are initiated against an Inspector of Police, information shall be sent to the Additional Commissioner of Police concerned.

32. Rule 15 and 16 of the aforesaid Rules read as under:-

33. What is apparent from the aforesaid discussion is that (i) the deceased was a Police officer under suspension residing in the police barrack, Police Station Civil Line.

(ii) He was seriously injured and had suffered injuries on or about 13.05.2009 and had remained in the barrack from 15.05.2009 till 22.05.2009, when he was shifted to the hospital.

(iii) The physical condition of the deceased on 22.05.2009 was very serious and he was taken to the hospital by HC Muni Ram (PW-12). (iv) There was an attempt made to conceal and not state the rectal injury of the deceased Harminder Singh as is apparent from the MLC Ex.PW-9/A and in the DD entry No.18-B, Ex.PW-25/A. (v) As per the testimonies of Head Constable Muni Ram (PW-12), ASI Surender Singh (PW- 13), Constable Krishan Kumar (PW-18) and Head Constable Dharam Singh (PW-19) all police officers, they knew and were aware that the deceased suffered injuries but they did not inform the authorities. Even after Harminder Singh was admitted in the hospital on 22.05.2009 till 30.05.2009/02.06.2009/25.08.2009, they remained quite. Later on they implicated the respondents. Between the periods from 22.05.2009 till 28.05.2009 the aforesaid witnesses, it is claimed, did not inform anyone that they were aware and knew or were told by the deceased that the injuries were given by the two respondents.

(vi) There was also delay after 28.05.2009, in recording the statements of PW-12, PW-13, PW-19 and PW-7 as their statements under Section 161 Cr.P.C. were recorded on or after 02.06.2009.

(vii) As per the police file, statement of Constable Krishan Kumar (PW-18) under Section 161 Cr.P.C. was recorded on 30.05.2009 but no reason or ground is forthcoming or stated why his statement was not recorded on 28.05.2009 and 29.05.2009. The deceased had died at 06:56 a.m. on 28.05.2009.

(viii) As per the police diary, no investigation or statement of witnesses were recorded on 31.05.2009 and 01.06.2009 and there is no forthcoming explanation or reason.

34. In these circumstances we think it appropriate and proper for the police authorities to conduct necessary preliminary inquiry under Rule 15 of the aforesaid Rules and then in terms of the inquiry initiated, if required and necessary proceedings under Rule 16 can be initiated. We clarify that no specific directions against any particular officer have been issued or made but it is necessary and appropriate for the police authorities to conduct a preliminary inquiry and in case any officer is found to be guilty of dereliction of duty or attempt to conceal or cover up the facts is ascertained, suitable action should be taken. There are various loop holes and gaps in the story of the prosecution version and this aspect has also to be kept in mind.

35. Recently, the Supreme Court in State of Gujrat v. Kishanbhai, 2014 (1) SCALE 177 has held as under:-

36. The report of the preliminary inquiry under Rule 15 once completed will be submitted to Delhi High Court before the Roster Bench. Preliminary inquiry should be completed expeditiously within shortest possible time. In case the preliminary inquiry is not conducted and the inquiry report is not received within four months, the Division Bench will be informed about the reasons and causes for the same. If it is found that there is any wilful default or negligence on the part of any police officer/officers, appropriate departmental action shall be initiated against him/them without waiting for any direction in this regard. If it is found that there is no such default or negligence, the matter shall be examined by the concerned Joint Commissioner of Police before submitting report to this Court.

37. The matter will be listed before the Roster Bench for the said purpose on 15.09.2014 and required/suitable order or direction can be passed thereupon.

38. The leave to appeal is dismissed with the aforesaid direction.

(SANJIV KHANNA) JUDGE (G.P. MITTAL)

JUDGE APRIL 21, 2014 vk